Endangered Species Act to the Rescue? Climate Change Mitigation and Adaptation Under the ESA

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By Olivia Bensinger a J.D. Candidate at Harvard Law School and the Managing Editor of Harvard Environmental Law Review. This post is part of the Environmental Law Review Syndicate (ELRS).

As we move further into the era of climate change, we often find ourselves looking in unlikely places for tools with which to combat global warming. The Endangered Species Act[1] (“ESA”) was enacted in 1973 for the singular purpose of protecting endangered and threatened species of animals and plants. The ESA has attacked this problem with all its might, and has been a strong force for ensuring the survival of many species.[2] Now, with climate change threatening species and their habitats, the ESA has a new danger to deal with. Is it up to the task?

One of the agencies responsible for implementing the ESA, the U.S. Fish and Wildlife Service (“FWS”), has recently considered impacts from climate change when deciding to list such animals as the polar bear and the North American wolverine.[3] However, when making these listing decisions, the FWS failed to extend the “take” provisions of the ESA to consider greenhouse gas emissions, stunting the effects of these listing decisions. To truly protect animals facing loss of critical habitat due to climate change, the FWS must consider how our changing reality affects each provision of the ESA and how each provision can be used, after listing, to further protect each species from the actual harm caused by climate change. Without taking this additional step, the ESA cannot successfully be used as a tool for climate change mitigation. Nevertheless, the ESA will be a necessary component of any plan for assisted species adaptation to climate change. Part I of this Paper will examine the ESA’s capacity for climate change mitigation through listing, takings, and consultation. Part II will look at the tools in the ESA best used for climate change adaptation, such as critical habitat designation, translocation, and Habitat Conservation Plans.

The Difficulty of Mitigating Climate Change Through the ESA

While there are some interesting legal arguments that would allow regulations of GHGs through the ESA, they are ultimately unsatisfying. The listing (Section 4), take (Section 9), and consultation (Section 7) provisions are the most likely avenues for climate change mitigation under the ESA, but each present distinct drawbacks. First, without using the full force of the law to prevent GHG emissions, listing alone cannot protect climate-threatened species. Second, the attenuated chain of causation from climate change to species-level harm limits the usefulness of the take provision. Finally, the consultation provision’s limited scope minimizes any benefit it may have. Ultimately, the FWS is not the best agency to regulate GHG emissions, nor is the ESA the best statute for the job, even where it seems to be possible.

A. Listing Petitions, Even When Successful, Can Be Undermined

Section 4(a)(1) of the ESA outlines the framework for making listing decisions for threatened or endangered species. It provides that “The Secretary shall . . . determine whether any species is an endangered species or a threatened species because of . . . (A) the present or threatened destruction, modification, or curtailment of its habitat or range . . . or (E) other natural or manmade factors affecting its continued existence.”[4] The last “catch-all” factor provides a clear route through which to list climate-threatened species. A “threatened species” is one “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range,”[5] and an endangered species is “in danger of extinction throughout all or a significant portion of its range.”[6] The FWS has proposed listing two species as threatened due to climate change: the polar bear and the wolverine.[7]

The polar bear depends on the presence of sea ice year-round for survival,[8] but there has been an “overall downward trend in the Arctic sea ice extent” due to climate change.[9] In 2005, environmental groups petitioned the FWS to list the polar bear as threatened under the ESA due to climate change’s impact on sea ice, and then filed a lawsuit when FWS did not respond to their petition.[10] After some back-and-forth, a federal judge ordered the FWS to make a final listing decision, and the FWS ultimately listed the polar bear as threatened.[11] The FWS used the “best scientific and commercial information available” to determine that loss of sea ice was a continued threat to the species that would likely cause it to become endangered in the near future, justifying the listing as a threatened species.[12]

The North American wolverine is threatened by climate change because it “rel[ies] on habitat with ‘deep persistent spring snow,’ with this need limiting their habitat to the coldest available landscapes.”[13] In 2013, the FWS proposed listing the wolverine population found in the contiguous United States as a threatened species under the ESA,[14] which would have made the wolverine the first—and only—species listed by FWS as threatened solely because of habitat loss due to climate change.[15] However, in 2014, the FWS withdraw the proposed listing, claiming that the science was inconclusive.[16] In April, a U.S. District Judge in Montana ruled that FWS violated the ESA when it withdrew the proposed rule.[17] FWS reopened the comment period on the proposed wolverine listing, closing the comment period on November 17, 2016.[18]

Even with threatened status, however, the polar bear is inadequately protected. FWS limited the effectiveness of the polar bear listing by issuing a 4(d) rule exemption. Section 4(d) provides: “Whenever any species is listed as a threatened species . . . the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species.”[19] Section 4(d) is used to issue takings-like regulations for threatened species because Section 9 of the ESA (the takings section) only applies to endangered species.[20] In the 4(d) rule for the polar bear, the FWS merely adopted the definitions of take under the Marine Mammal Protection Act (“MMPA”) and the Convention on International Trade in Endangered Species (“CITES”), both of which already covered the polar bear.[21] Further, the FWS “expressly declined to reach activities outside of the species’ current range.”[22] Additionally, the FWS refused to extend the Section 9 take prohibitions or the Section 7 consultation provisions to include GHG emissions contributing to climate change.[23] Then-Secretary of the Interior Kempthorne “essentially stated that while the ESA may require him to list the polar bear as a threatened species, that listing should not be used as a backdoor method or justification for regulating greenhouse gas emissions or addressing climate change more generally.”[24] As long as the FWS is refusing to regulate the causes or contributions to climate change, listing alone does little to protect climate-threatened species. However, listing is necessary in order to assist the species in its future adaption needs.

B. GHG Emissions as a “Take” and the Problem of Causation

Section 9 of the ESA prohibits any “person” from, among other things, taking an endangered species.[25] In the context of the ESA, “‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”[26] Since the Supreme Court decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (“Sweet Home”),[27] “harm,” as used in the definition for “take,” includes “any significant habitat modification that leads to the death or injury of the species.”[28] In her concurrence in Sweet Home, Justice O’Connor emphasized the importance of taking into account any negative impact the habitat modification would have on the “breeding, feeding, and sheltering” of the species because any harm to these basic survival activities would ultimately lead to death or injury of the species.[29]

Despite there being some flexibility with the definition of “actual harm,”[30] arguing that the emission of GHGs constitutes a taking is problematic because there is no easily identifiable “critical link” between the emission and the actual harm. If the FWS were to go after private GHG emitters, they would have great difficulty linking the actions of that particular emitter to the specific harm to the species they were representing.[31] Harm from climate change presents the problem of multiple actors and de minimis contributions.[32] It is practically impossible to trace emissions from one polluter to harm to a specific species. This problem could possibly be addressed by either: (1) targeting enforcement suits at major emitters, or (2) targeting enforcement suits at proposed or existing fossil fuel infrastructure located within critical habitat designations. Because GHG emissions are the primary driver of climate change and sea-level rise, GHG emitters are the beginning of a causal chain that leads to the “take” of an endangered species.

So far, the FWS has denied the opportunity to find that climate change constitutes a “harm” under the ESA. This decision is likely a result of the lack of desire to take on regulating greenhouse gases, and the difficulty in providing a causal link between a specific GHG emitter and the particular harm to the species.[33] However, “considering that the policy goal of the ESA is to conserve species, any injury likely to substantially impact a species’ long-term survival should be considered a proximate cause of harm.”[34] In the context of climate change, it might be easier to prove causation if we were to focus on the population level effect of a habitat modification in order to better assess its impact on the species as a whole.[35]

One model of a possibly useful takings suit is that of Defenders of Wildlife v. Administrator.[36] In this case, Defenders of Wildlife sued the Environmental Protection Agency (“EPA”), alleging that they were “taking protected eagles by continuing to allow certain pesticide uses of strychnine.”[37] The Eighth Circuit agreed.[38] While Massachusetts v. EPA[39] has already directed EPA to regulate greenhouse gas emissions, this method could be used to further drive action on climate change; according to this theory, inaction by FWS in the face of a changing climate may be unlawful. Such a lawsuit might be subject to dismissal under the non-justiciable political question doctrine, but, if successful, could force EPA to hasten climate change regulation. Overall, Section 9 is not the best use of the ESA to deal with climate change, but the concept of “harm” as “adverse modification of habitat” is also useful under Section 7.

C. Consultation

Section 7 of the ESA requires federal agencies to consult with the Secretary of the Interior before taking any action that might harm a threatened or endangered species:

Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency ( . . . “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical, unless such agency has been granted an exemption for such action . . . .[40]

To begin the consultation process, an agency requests information from the FWS “as to whether any listed species, or candidate species, exists in the area of the proposed agency action.”[41] If the consulting agency decides that there are listed or candidate species in the action area, they must issue a biological opinion addressing two questions: “(1) will the agency action jeopardize the continued existence of an endangered species or threatened species? and (2) will the agency action result in the destruction or adverse modification of habitat of endangered or threatened species?”[42]

The FWS defines “jeopardize” as “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.”[43] “Adverse modification” is defined as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species.”[44] Importantly, “[w]hat matters for [S]ection 7 purposes is the impact of the agency action on the species as a whole—not the harm to individual organisms.”[45]

In determining whether an agency action “jeopardizes the continued existence” of a species, it may be appropriate to ask not whether an agency action causes climate change that then causes harm to the species, but rather whether the agency action contributes to climate change, and thus also to the environmental baseline. The environmental baseline encompasses:

the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early [S]ection 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process.[46]

The jeopardy analysis requires agencies to look at the incremental impact of the agency action when added to the environmental baseline.[47] The incremental approach of the environmental baseline could work to shield agencies from liability because climate change is already happening and it would be hard to prove that the agency action somehow pushes the species over the edge.[48] However, the agency, or a court, could take the view that any contribution to the furtherance of climate change adds to the environmental baseline in a way that jeopardizes the continued existence of the species threatened by climate change.

When evaluating the impact of their action, the agency must also take into account the “action area” of the project which is defined as “all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action.”[49] Causation again becomes an issue when trying to fit climate change into the frame of an “action area:” what are the effects of the GHG emissions from an agency action, and what is their geographic scope?[50]

The best route under the ESA for climate change mitigation is under Section 7 because of its species-wide concerns, expanded range of impact, and the requirement to take into account the other sources of harm facing the species. Furthermore, “courts normally remedy [S]ection 7 violations with injunctive relief,”[51] which means that there is greater possibility of preventing new fossil fuel extraction projects altogether, as long as they are tied to a federal agency. While it still might be a bit of a stretch to try use Section 7 of the ESA to prevent specific federal projects with high levels of GHG emissions, it still presents a more promising route than Section 9. However, altogether, climate mitigation is unlikely to be a successful use of the ESA.

Possible Adaptation Structures Under the ESA

Although the ESA can only indirectly mitigate climate change, it could effectively promote climate change adaptation.[52] FWS lacks the expertise to handle full-scale GHG regulation; this duty belongs to EPA. While this Article advocates creativity in targeting specific projects in a kind of small-scale mitigation, the best use for the ESA is likely in the form of adaptive management. This Part will look at critical habitat designation and how it can become forward-looking and adaptive, as well as how private parties can adjust Habitat Conservation Plans (“HCPs”) to account for climate change.

A. Critical Habitat Designations

Critical habitat designation is the most important tool the ESA has to offer endangered and threatened species in the era of climate change. The ESA defines critical habitat as:

(i) the specific areas within the geographical area occupied by the species, . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed . . . upon a determination . . . that such areas are essential for the conservation of the species.[53]

Critical habitat designations are designed to protect habitat “necessary for a [threatened or endangered] species’ survival or recovery.”[54] The designation functions by providing “notice to government agencies and private actors of the existence and importance of the habitat,” which could serve to divert development projects.[55] However, while critical habitat designation is an important protective tool, its use is often delayed, and many listed species have not received a designation.[56]

Importantly in the era of climate change, the definition of critical habitat also allows the FWS to designate “target land areas for future migrations.”[57] Also, helpfully, the FWS can revise the designation as needed.[58] The designation of not-yet-occupied habitat is useful in the context of consultation because an agency action could be found to adversely modify the future value of the habitat to the species.[59] Designating unoccupied habitat for future use is a vital step to preserving all possible futures for climate-threatened species, especially as original habitats become inhospitable to the species that call them home.

Critical habitat designations have not been without controversy. In the past, “[c]ourts have required that each of the elements contained in this statutory definition of critical habitat must be satisfied for a critical habitat designation to be valid.”[60] FWS proposed a rule in 2014 that, despite Congress’s preference toward occupied habitat, treats occupied and unoccupied habitat almost interchangeably, explicitly stating that “the Act does not require the Services to first prove that the occupied areas are insufficient before considering unoccupied areas.”[61] The proposed rule even authorizes the designation of areas that will likely become necessary to support the species.[62] It is this type of ambitious rulemaking, coupled with court rulings that make critical habitat designation more efficient,[63] that will prepare the ESA to tackle climate change.

As we designate occupied and unoccupied critical habitat for climate-threatened species, it is important to make sure that the animals are able to access the new habitat when they need it. Wherever possible, future target areas must be made accessible through the use of wildlife corridors, linkages, or other forms of connectivity.[64] However, creating these linkages might not always be possible and even where they are, animals might not migrate on their own. So, what then? Assisted migration or species translocation might be the most viable step. While translocation should be a last resort, there might come a time when it is the only way to save a species.

B. Section 10(j)

Section 10(j) presents another possibility for developing climate change adaptation strategies under the ESA. While the original intent of the ESA is to preserve species in their original habitat, and while translocation might, on first glance, look like a “take,”[65] there may soon be a time when there is no other choice. Under Section 10(j) of the ESA, “[t]he Secretary may authorize the release . . . of any population . . . of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such release will further the conservation of such species.”[66] This Section allows the Secretary to designate experimental populations to test how translocation might affect a species or ecosystem before authorizing the practice for a wide swath of species.[67] FWS “[r]egulations interpreting this provision allow for the use of habitat outside a species’ historic range when the ‘primary habitat of the species has been unsuitably and irreversibly altered or destroyed.’”[68] But the idea of translocation is controversial because of its antithesis to our general idea of preservation and its ability to disturb native species and ecosystems, either by removing or introducing a species.[69]

Before assisted translocation becomes our only option, however, it is necessary to create adaptive management plans for species and their critical habitat. With adaptive management, “results are monitored and varying strategies are compared for relative effectiveness. Initial plans ideally should provide: 1. clear objectives by which experiments may be assessed, and 2. specific criteria or triggers for when strategies must be adjusted to reflect new information or changed circumstances.”[70] This type of plan allows managers some flexibility in their decision-making, but also provides detailed plans for certain situations that need the most careful attention. Adaptive management is “the gold standard approach for handling climate adaptation.”[71]

C. Habitat Conservation Plans

Under Section 10(a) of the ESA, private parties applying for incidental take permits “must submit a habitat conservation plan (“HCP”) for that species, containing mitigation planning that is directly tied to the species take that will occur.”[72] Section 10(a) is the “only provision in the ESA to address the protection of private land habitat.”[73] The private landowner receives an incidental take permit in exchange for devising a plan that seeks to “minimize and mitigate” the impact of the development on their land.[74] The individual nature of this program, the relative disinterest of private landowners in the preservation of species, lack of adequate funding, and scant enforceability have stunted the potential of the provision.[75]

While HCPs haven’t always lived up to their potential,[76] it would be relatively simple to incorporate climate change planning into HCPs. First, the applicant must identify which species are covered by the incidental take permit that is the impetus for the HCP, then determine which of those species are affected by climate change.[77] Because HCPs often include “unlisted species that are likely to become listed over the permit term,”[78] HCPs are a good way to account for species that might be affected by climate change in a certain area without or before going through the listing process.

HCPs can also be an effective tool through which to practice adaptively managing current habitat and successfully designing future habitat by focusing on the underlying features of the current habitat that make it amenable to a certain species.[79] Practicing adaptive management would give the land managers enough flexibility to respond to new information. Habitat suitability modeling and monitoring, along with expert opinion, “can guide the identification and acquisition of future habitat.”[80] Because HCPs are long-term plans, it is appropriate for them to focus on creating wildlife corridors and planning for the enduring survival of the species.[81] Part of adaptive management in the context of climate change involves “anticipating the effects of climate change and addressing them proactively in the planning process.”[82] Part of anticipating the effects of climate change includes planning for disturbance events and managing for resilience to any natural disaster that might occur.[83] Overall, focusing on the future and being flexible and creative when making decisions about the composition of future habitat and assisted migration are key components to a successful HCP.[84]

Conclusion

The ESA is the most important tool we have for protecting species in the era of climate change. While the Act theoretically has the capacity to prevent fossil fuel activity through the Section 7 consultation provision, it is unlikely to be useful in the realm of climate change mitigation. FWS is not the appropriate agency through which to regulate GHG emissions. On the other hand, as an Act designed to protect species in an inevitably changing world, adaptation has to be a top priority for the ESA. FWS can handle this task as long as it prioritizes flexibility by responding to research outcomes along the way. But first, FWS must prioritize actually designating critical habitat for the many listed species for which it has failed to do so. Designated habitat needs to be adaptively managed and future-looking so that the species can best acclimate, with or without help, as the climate changes. For private companies and private landowners, HCPs offer a clear path for long-term adaptive planning that can make a real difference in the survival of climate-threatened species. Protecting animals without protecting their habitats is a lost cause. The ESA may have been written in 1973, but it has what it takes to protect species from the ecological problems of the twenty-first century. This requires only that we read the ESA, and act pursuant to it, in light of our changing world.

[2]See Ari N. Sommer, Note, Taking the Pit Bull Off the Leash: Siccing the Endangered Species Act on Climate Change, 36 B.C. Envtl. Aff. L. Rev. 273, 284 (2009) (“The ESA has been described as one of the most effective environmental statutes ever passed by Congress, largely because of its absolutist stance.”).

[7]See Threatened Status for the Distinct Population Segment of the North American Wolverine Occurring in the Contiguous United States, 79 Fed. Reg. 47,522 (Aug. 13, 2014); Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15, 2008); see also Proposed Rule for the North American Wolverine, 81 Fed. Reg. 71,670 (Oct. 18, 2016).

[25] 16 U.S.C. § 1538 (2012); see also Mooar, supra note 24, at 401 (citing § 1532(13) (“‘[P]erson’ is defined broadly to include any real person, any corporation, any government or government agent at any level, and ‘any other entity subject to the jurisdiction of the United States.’”).